Thompson v Barboza

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) GEORGE THOMPSON, ) ) Plaintiff, ) ) v. ) C.A. No. 14-14355 ) THOMAS BARBOZA, )

) ) Defendant. ) )

COMPLAINT

INTRODUCTION

1. This is a civil rights action against a Fall River police officer for falsely

arresting George Thompson for exercising his First Amendment right to record the officer

in public. Mr. Thompson recorded Defendant Thomas Barboza talking on a cellphone and

cursing while on duty at a detail next to Mr. Thompson’s house. Mr. Thompson was on his

front porch when he video- and audio-recorded Defendant Barboza walking back and forth

in the street, loudly and repeatedly swearing into his phone. When Defendant Barboza

noticed that Mr. Thompson was recording him with a smartphone, he told Mr. Thompson it

was a “federal offense” to record him. He stormed into Mr. Thompson’s yard and onto his

porch, cursing at Mr. Thompson, threatening him, and placing him under arrest. Defendant

Barboza charged Mr. Thompson with unlawful wiretapping for secretly recording Barboza’s

voice even though the recording was not secret and was, regardless, protected by clearly

established First Amendment law. Defendant Barboza seized the phone as “evidence.”

While it was in police custody, all of the contents of the phone were deleted. Mr. Thompson

seeks damages for Defendant’s violations of his constitutional rights.

Case 1:14-cv-14355 Document 1 Filed 12/08/14 of 7

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JURISDICTION 2. This action is brought pursuant to 42 U.S.C. §1983 and § 1988 and the First,

Fourth, and Fourteenth Amendments to the United States Constitution. Title 28 U.S.C. §

1331 and § 1343 provide federal question jurisdiction over all federal claims, and 28 U.S.C. §

1367 provides supplemental jurisdiction over state law claims.

PARTIES

3. Plaintiff George Thompson was at all times relevant to this complaint a

resident of Massachusetts living in Bristol County.

4. Defendant Thomas Barboza was at all times relevant to this complaint a duly

appointed police officer of the Fall River Police Department. His actions alleged in this

complaint were taken under color of the laws of the Commonwealth of Massachusetts and

the City of Fall River. He is sued in his individual capacity.

FACTS

5. On January 6, 2014, at approximately 11 a.m., Mr. Thompson was sitting on

the front porch of his house, which is at the intersection of Locust and Linden Streets in Fall

River.

6. Defendant Barboza was working a traffic detail at that intersection at that

time. He was in uniform and on duty.

7. Mr. Thompson noticed that Defendant Barboza was talking on a cellphone.

Defendant Barboza was walking back and forth, loudly and repeatedly cursing into the

phone.

8. Mr. Thompson asked Defendant Barboza to watch his language. Defendant

Barboza responded by cursing at Mr. Thompson and telling him to mind his own business.


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9. Mr. Thompson took out his smartphone and began openly filming

Defendant Barboza, who continued to talk on the phone and curse. Mr. Thompson held his

smartphone in his outstretched hand in plain view.

10. When Defendant Barboza saw the smartphone, he became incensed. He

knew he was being filmed and he did not like it. He was particularly angry because he knew

that the phone had captured him acting improperly on duty. He told Mr. Thompson that it

was a “federal offense” to record him.

11. Defendant Barboza charged into Mr. Thompson’s fenced-in yard and onto

the porch, yelling and cursing at him. Defendant Barboza called Mr. Thompson a “f---ing

welfare bum” and told him he was under arrest.

12. Defendant Barboza put Mr. Thompson in handcuffs, then shoved him to the

ground. At no point did Mr. Thompson struggle with the officer or resist arrest. During the

arrest Defendant Barboza threatened Mr. Thompson, stating he was going to drive by Mr.

Thompson’s house every night.

13. Defendant Barboza confiscated Mr. Thompson’s smartphone, as well as

another cellphone Mr. Thompson was carrying.

14. Defendant Barboza charged Mr. Thompson with violating the Massachusetts

wiretap law, M.G.L. ch. 272, § 99, as well as resisting arrest, M.G.L. ch. 268, § 32B.

15. There was no probable cause to arrest or prosecute Mr. Thompson for either

of these charges, or for any other charge. Defendant Barboza arrested Mr. Thompson and

initiated baseless criminal charges against him to retaliate against Mr. Thompson for

exercising his First Amendment right to record Barboza. Defendant Barboza wrote a false

police report to cover up his own misconduct.


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16. Defendant Barboza’s report attempted to justify the wiretapping charge

against Mr. Thompson. Defendant Barboza’s report admitted, however, that he could see

Mr. Thompson’s cellphone while it was recording him and that Mr. Thompson openly and

repeatedly acknowledged that he was recording Barboza. Because the Massachusetts wiretap

statute prohibits only secret recording, Barboza’s report failed to establish probable cause for

that crime.

17. Even if Mr. Thompson had secretly recorded Defendant Barboza, no

reasonable police officer would have believed he could lawfully arrest Mr. Thompson for

wiretapping. A reasonable police officer would have known that recording a police officer

performing his duties in public is a constitutionally protected right. The First Circuit’s

opinion in Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011), made clear that the right to record

public officials in a public space is “a basic, vital, and well-established liberty safeguarded by

the First Amendment.”

18. Defendant Barboza’s police report falsely claimed that Mr. Thompson

resisted arrest when Barboza attempted to place a handcuff on his right wrist. Mr.

Thompson was cooperative when Barboza was handcuffing him. He did not resist arrest.

19. After Mr. Thompson’s criminal defense lawyer filed a motion to dismiss the

criminal charges as unsupported by probable cause, the District Attorney’s Office agreed to

drop all charges against Mr. Thompson.

20. While Mr. Thompson’s smartphone was in the custody of the Fall River

police, all of the data on the phone—including the video he had taken of Defendant

Barboza’s belligerent and improper behavior—was deleted.

21. Fall River police tried to blame Mr. Thompson for the deletion. A Fall River

police detective issued a report suggesting, without any evidence, that Mr. Thompson had


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remotely erased the contents of the phone through the “cloud.” The chief of police publicly

insinuated that Mr. Thompson or someone else outside the police department might have

deleted the contents.

22. In fact, Fall River police were responsible for deleting the contents of the

phone, as an independent forensic investigation later confirmed.

23. As a result of Defendant Barboza’s misconduct, Mr. Thompson suffered loss

of property and physical and emotional damages. All of the contents of his smartphone,

including personal photographs, were deleted. He was deprived of the use of his smartphone

for months while it was improperly held as evidence. Mr. Thompson suffered physical pain

when Barboza knocked him to the ground. Mr. Thompson spent the night in jail and faced

baseless criminal charges for several months. He is now afraid to go out alone because he

fears being harassed by the police.

COUNT I 42 U.S.C. § 1983

24. The above paragraphs are incorporated by reference.

25. Defendant used unreasonable and excessive force against Plaintiff.

26. Defendant falsely arrested Plaintiff.

27. Defendant assaulted, arrested, and initiated baseless criminal charges against

Plaintiff for exercising his right to record police activity in public places and to criticize

police officers. Defendant arrested Plaintiff and seized his smartphone to cover up his own

misconduct and to prevent dissemination of the video.

28. Defendant’s actions deprived Plaintiff of his well-established rights under the

First, Fourth, and Fourteenth Amendments to the United States Constitution.

29. Defendant’s actions were taken in reckless disregard for Plaintiff’s

constitutional rights.


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30. As a direct and proximate result of Defendant’s actions, Plaintiff suffered the

damages described above.

COUNT II Massachusetts Civil Rights Act M.G.L. c. 12, § 11I


32. Defendant threatened, intimidated, and physically coerced Plaintiff to stop

him from recording police officers and from criticizing them, and to serve as a lesson to him

and others that videotaping or criticizing police officers could result in arrest, physical harm

and/or damage to property.

33. Defendant violated Plaintiff’s civil rights under the Massachusetts Civil

Rights Act, M.G.L. c. 12, § 11I, by threats, intimidation, and coercion.



COUNT III Massachusetts Tort of Malicious Prosecution


36. Defendant caused criminal charges to be brought against Plaintiff without

probable cause and with malice. The criminal charges were all disposed of favorably Plaintiff.



WHEREFORE, Plaintiff requests that this Court:

1. Award compensatory damages;

2. Award punitive damages;

3. Award the cost of this action, including reasonable attorney’s fees; and

4. Award such other further relief as this Court may deem necessary and appropriate.


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JURY DEMAND A jury trial is hereby demanded. RESPECTFULLY SUBMITTED, For the Plaintiffs, By their attorneys,

/s/ David Milton Howard Friedman, BBO #180080 David Milton, BBO #668908 Law Offices of Howard Friedman, P.C. 90 Canal Street, Fifth floor Boston, MA 02114-2022 617-742-4100 [email protected] [email protected]

Dated: December 8, 2014 CERTIFICATE OF SERVICE

I certify that on this day a true copy of the above document was served upon the attorney of record for each party via ECF. Date: December 8, 2014 /s/ David Milton David Milton


Thompson v Barboza

Documents

Transcript of Thompson v Barboza